People v. Figaro

• Decision Date: 01 December 1997
• Citation: 667 N.Y.S.2d 372,245 A.D.2d 300
• Parties: The PEOPLE, etc., Respondent, v. Gavon FIGARO, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 372

667 N.Y.S.2d 372

245 A.D.2d 300

The PEOPLE, etc., Respondent, v. Gavon FIGARO, Appellant.

Supreme Court, Appellate Division Second Department.

Dec. 1, 1997.

Lynn W.L. Fahey, New York City (Barry Stendig, of counsel), for appellant.

Charles J. Hynes, District Attorney, Brooklyn (Roseann B. MacKechnie, Leonard Joblove, and Joyce Slevin, of counsel), for respondent.

Before MANGANO, P.J., and BRACKEN, ALTMAN and GOLDSTEIN, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Beldock, J.), rendered May 8, 1996, convicting him of robbery in the second degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing (Feldman, J.), of the defendant's motion pursuant to CPL 30.30 to dismiss the indictment against him on the ground that he had been denied his statutory right to a speedy trial.

ORDERED that the judgment is reversed, on the law, the defendant's speedy trial motion is granted, the indictment is dismissed, and the matter is remitted to the Supreme Court, Kings County, for the purpose of entering an order in its discretion pursuant to CPL 160.50.

In the instant case, involving a robbery which occurred on February 9, 1994, the People were obligated to be ready for trial within six months after April 20, 1994, the date on which the felony complaint was filed (CPL 1.20[17]; 30.30[1][a]; People v. Sinistaj, 67 N.Y.2d 236, 239, 501 N.Y.S.2d 793, 492 N.E.2d 1209; People v. Osgood, 52 N.Y.2d 37, 43, 436 N.Y.S.2d 213, 417 N.E.2d 507; People v. Lomax, 50 N.Y.2d 351, 355-356, 428 N.Y.S.2d 937, 406 N.E.2d 793). The six-month period from April 20, 1994, through October 20, 1994, consisted of 183 days, and thus the limit in this case is 183 days of chargeable time (see, People v. Allen, 172 A.D.2d 542, 544, 568 N.Y.S.2d 132). The People announced their readiness for trial on December 21, 1994, 245 days after April 20, 1994.

The People concede that the two-day period from April 20, 1994, through April 22, 1994, i.e. from the date of the filing of the felony complaint to the date the complainant was scheduled to appear before the Grand Jury, is chargeable to them. However, the People argue that the 61-day period from April 22, 1994, through June 22, 1994, is not chargeable to them since the complainant was unavailable to testify during this period and they exercised due diligence to obtain her testimony. It is true that a delay between the filing of a felony complaint and subsequent indictment due to the unavailability of a witness may be excused as "exceptional circumstances" (CPL 30.30[4][g] ), if the People attempted with due diligence to make the witness available (see, People v. Zirpola, 57 N.Y.2d 706, 708, 454 N.Y.S.2d 702, 440 N.E.2d 787). However, in order to demonstrate due diligence, the People must undertake "credible, vigorous activity" to...